Decision #39/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on February 20, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 20, 2002.Issue
Whether or not the claim is acceptable.Decision
The claim is not acceptableBackground
In May 2001, the claimant submitted an application for compensation benefits for a right ankle injury that occurred on May 3, 2001 when she stepped off a curb into a crack in the pavement. The incident occurred while walking from her employer's lounge to a downtown location to commence her second driving shift. In later correspondence, the claimant advised that the lounge is a place to spend time between shifts and that's where she was having lunch and killing the rest of her four hours off.In a letter dated May 9, 2001, the employer's representative opposed the acceptance of the claim given the circumstances precipitating the accident. The employer noted that the claimant was scheduled to take control of a vehicle at 12:45 p.m. Thirteen (13) minutes prior to doing so, the claimant sustained an injury to her right ankle while stepping off a curb. The employer therefore believed that the said accident did not arise out of and in the course of the claimant's employment.
On June 18, 2001, a Workers Compensation Board (WCB) adjudicator contacted the claimant's supervisor. The supervisor confirmed that the employer leased a room as a convenience for its drivers. The room was a comfort station and drivers can use the room in between their shifts or at any time. The supervisor explained that not all drivers spend their time in the lounge between shifts. When a driver is done their shift they are off payroll and what they do with their time is entirely up to them. On the date of accident, the claimant finished her shift at 8:45 a.m. and she was not scheduled to start again until 12:43 p.m.
In another telephone conversation on June 18, 2001, the employer's representative indicated that the claimant was on a public walkway when she was injured. This can be considered the property of the employer in a broad sense but cannot be considered premises for the purposes of the Workers Compensation Act (the Act). The employer indicated that most switchovers for split shifts are downtown and that drivers are expected to be at their vehicle at the time of the switch and if they are not, they are penalized. The employer opined that a worker was not covered until they stepped onto the actual vehicle at which time the vehicle is considered an extension of the employer's premises.
On June 22, 2001, the WCB advised the claimant that based on the weight of evidence, the injury which she incurred did not arise out of or in the course of her employment and that her claim for compensation was denied. The basis for the decision was as follows:
- drivers are not paid until such time as they assume control of their assigned vehicles; and
- the injury did not occur on the employer's premises.
Reasons
Chairperson Sargeant and Commissioner Finkel:
This case involves a worker who sustained an injury to her ankle while between shifts at her job as a driver. Her claim for compensation was not accepted by the board. Review Office upheld that decision, which she has now appealed to this Commission.
At issue is whether or not her claim is acceptable. For her appeal to succeed, the Panel would have to determine that the injury was caused by an accident which arose out of and in the course of her employment, as required by subsection 4(1) of The Workers Compensation Act. In this case, we had to narrow the finding to whether or not she was “in the course of her employment” at the time the injury was sustained. A majority of the panel was not able to make that determination.
In coming to our decision, we made a careful review of the claims file, as well as holding an oral hearing at which we heard testimony and argument from representatives of both the claimant and the employer.
As noted in the Background, the worker was working a split shift, with a period of about four hours between the end of the first part of her shift and the beginning of the remainder of the shift. This period is free time, with the worker being able to do whatever she chooses. This worker chose to spend her time relaxing in a room maintained by the employer for workers. It was while walking from this room to the point she was to pick up the vehicle for her second shift that she injured herself, on a public walkway.
We were asked to consider two Board policies as being relevant to our deliberations. These are: Policy 44.05.20, General Premises, and Policy 44.10.50.50, Travelling on the Job.
In respect of the first, the worker’s advocate argued that, since the worker had spent her break at the employer-provided facility and was travelling directly from that facility to the pick-up point, she should be considered to have been on the employer’s premises.
In referring to the policy on premises, we note the following excerpts:
b. The employer's premises does not include:
i. The public or private land, buildings, roads or sidewalks used by the worker to travel to and from home and the employer's premises.
In this case, the claimant was walking on a public sidewalk and roadway.
c. When determining whether an accident was in the course of employment, the WCB will consider:
i. What activity the worker was engaged in when injured in order to determine the connection with the employment (ie., did the injury result from a personal act, unrelated to the employment, or was there an employment connection).
ii. Where the worker was performing the activity. The place the injury occurred is an element in determining the connection to the employment.
iii. When the worker was engaged in the activity. This is also an important factor in determining whether the activity was "in the course of the employment" (ie., did the activity occur at a time reasonably connected to the work shift).
The claimant was travelling to her work site. She was still a few blocks away from the pick up point when the accident occurred. And, there were still about fifteen minutes before the start of her shift.
d. Generally, a worker is in the course of the employment upon entering or departing the employer's premises, at a time reasonably close to the beginning or end of work ….
She had not yet entered into the employer’s premises. Had she been at the location where the pick up was to occur and she had injured herself stepping off the curb to adjust a mirror or clean the windshield, she probably would have had an argument, but that was not the case here.
3. Travel Between Two Portions of the Employer's Premises:
In going to and from work, a worker will not usually be "in the course of employment" when travelling on property between two portions of the employer's premises.
This clause seems to be directly on point. It could be presumed that the lounge was one portion of the employer’s premises, with the vehicle, or the immediate area of the pick-up location, being the other. Under this policy, her travel from one to the other is not in the course of employment.
In respect of the Travelling on the Job policy, the majority agrees with the employer’s representative who submitted that this policy has no application to these circumstances. “This policy is designed to extend coverage to those workers that are required to travel from worksite to worksite as part of their employment and are under the direction and control of the employer while doing so.”
The Appeal Panel is bound to follow Board Policy, where applicable. In considering whether or not the claimant was in the course of her employment, the majority has concluded that policy is very clear in setting out that she is not.
Accordingly, the appeal is dismissed.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant,
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of April, 2002